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Should Alan Dershowitz Target Himself for Assassination

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                   Should Alan Dershowitz Target Himself for Assassination?




As Israel‟s military bravely fires away shells and missiles to lay waste the fragile human and

physical infrastructure of Lebanon, Harvard Law Professor Alan Dershowitz, waging battle on a

second front to legitimize Israel‟s criminal aggression, bravely fires away op-eds from his foxhole

at Martha‟s Vineyard to lay waste the fragile infrastructure of international law. These are but

the latest salvoes in Dershowitz‟s long and distinguished career of apologetics on behalf of his

Holy State.



Since becoming a born-again Zionist after the June 1967 war Dershowitz has justified each and

all of Israel‟s egregious violations of international law. In recent years he has used the “war on

terrorism” as a springboard for a full frontal assault on this body of law. Appearing shortly after

the outbreak of the second intifada, his book Why Terrorism Works (2002) served to rationalize

Israel‟s brutal repression of the uprising.1 In 2006 Dershowitz published a companion volume,

Preemption: A Knife that Cuts Both Ways,2 to justify Israel‟s preventive use of force against Iran.

It is painfully clear from their content that Dershowitz possesses little knowledge or for that

matter interest in the timely political topics that purport to be the stimuli for his interventions.3 In

reality each book is keyed to a current Israeli political crisis and seeks to rationalize the most

extreme measures for resolving it. If Why Terrorism Works used the war on terrorism as a

juggernaut to set back the clock on protection of civilians from occupying armies, Preemption
1
  New Haven, 2002. See Norman G. Finkelstein: Beyond Chutzpah: On the misuse of anti-Semitism and
the abuse of history (Berkeley, 2005), p. 176n19.
2
  New York: 2006.
3
  The profundity of Dershowitz‟s insights in Preemption can be gauged from these examples: in the event
of a smallpox attack, he sagely advises, “an appropriate balance must be struck between too much and too
little inoculation,” while “as terrorism increases,” he boldly predicts, “there will be increasing calls for
prior censorship of speech that is believed to incite suicide bombers and others who target civilians”
(Preemption, pp. 144, 149). His scholarly citations are also up to par of previous books: to document early
U.S. plans for a first strike on Chinese nuclear facilities, for example, he cites Popular Mechanics
magazine (Preemption, pp. 299-300n26).
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uses the war on terrorism to set back the clock on the protection of states from wars of

aggression. Dershowitz‟s current missives from Martha‟s Vineyard take aim at the protection of

civilians in times of war.



The central premise of Dershowitz is that “international law, and those who administer it, must

understand that the old rules” do not apply in the unprecedented war against a ruthless and

fanatical foe, and that “the laws of war and the rules of morality must adapt to these [new]

realities.”4 This is not the first time such a rationale has been invoked to dispense with

international law. According to Nazi ideology, ethical conventions couldn‟t be applied in the

case of “Jews or Bolsheviks; their method of political warfare is entirely amoral.”5 On the eve of

the “preventive war”6 against the Soviet Union, Hitler issued the Commissar Order, which

mandated the summary execution of Soviet political commissars and Jews, and set the stage for

the Final Solution. He justified the order targeting them for assassination on the ground that the

Judeo-Bolsheviks represented a fanatical ideology, and that in these “exceptional conditions”7

civilized methods of warfare had to be cast aside:

    In the fight against Bolshevism it must not be expected that the enemy will act in accordance with
    the principles of humanity or international law…any attitude of consideration or regard for
    international law in respect of these persons is an error….The protagonists of barbaric Asiatic
    methods of warfare are the political commissars….Accordingly if captured in battle or while
    resisting, they should in principle be shot.8

It was simultaneously alleged that the Red Army commissars (who were assimilated to Jews)

qualified neither as prisoners of war protected by the Geneva Convention nor civilians entitled to




4
  Alan M. Dershowitz, “Arbour Must Go,” in National Post (21 July 2006); Alan M. Dershowitz,
“Arithmetic of Pain,” in Wall Street Journal (19 July 2006).
5
  Helmut Krausnick et al., Anatomy of the SS State (New York: 1965), p. 336 (quoting Himmler).
6
  Horst Boog et al., Germany and the Second World War, vol. iv, The Attack on the Soviet Union (Oxford:
1998), pp. 38, 39, 517.
7
  Krausnick, Anatomy, p. 356.
8
  Ibid., pp. 318-19; Boog, Attack, pp. 499-500, 510, 515.
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trial before military courts, but rather were in effect illegal combatants.9 Plus ça change, plus

c'est la même chose.



It is similarly instructive that, although Dershowitz is represented, and represents himself, in the

media as a liberal and civil libertarian, the sort of arguments he makes crops up most often at the

far right of the political spectrum. For example, in the recent landmark decision Hamdan v.

Rumsfeld, the Supreme Court found that the petitioner, a Yemeni national captured in

Afghanistan and held in Guantanamo Bay, was entitled, under both domestic statute and

international law, to minimum standards of a fair trial, which the Commission Order, setting the

guidelines for military commissions, didn‟t meet.10 A centerpiece of Judge Clarence Thomas‟s

dissent was that “rules developed in the context of conventional warfare” were no longer

applicable because – quoting President Bush – “the war against terrorism ushers in a new

paradigm” and “this new paradigm…requires new thinking in the law of war.” Inasmuch as “we

are not engaged in a traditional battle with a nation-state,” he went on to argue, the Court‟s

decision “would sorely hamper the President‟s ability to confront and defeat a new and deadly

enemy.” It‟s hard to know where Thomas (and Bush) ends and Dershowitz begins.



The main thrust of Preemption is to justify an Israeli assault on Iran‟s nuclear facilities. Although

the book purports to the lofty goal of constructing a jurisprudence for criminal intent prior to

commission of an actual crime, Dershowitz‟s range of historical reference is pretty much limited

to the Bible and Israel, and it is plainly not the Bible that is uppermost in his mind.11 To justify


9
  Boog, Attack, pp. 497-8, 508.
10
   Hamdan v. Rumsfeld et al. No. 05-184. Argued March 28, 2006 – Decided June 29, 2006. It is not
without interest that the specific features of military commissions that the Court criticized when it struck
down their legality – use of secret evidence, hearsay evidence, and evidence extracted by coercion – are
typical of Israeli military courts in the Occupied Palestinian Territory. See Lisa Hajjar, Courting Conflict:
The Israeli military court system in the West Bank and Gaza (Berkeley: 2005).
11
   His only other significant historical reference is the clichéd one to justify preventive war: if only the
Allies had attacked Germany before the Nazis consolidated their power (Preemption, pp. 66-7, 159-61).
Because Dershowitz doesn‟t engage any of the scholarship on this topic it would be a pointless digression
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the Israeli assault on Iran Dershowitz sets up Israel‟s attack on Egypt in June 1967 as the

paradigm of legitimate preemptive war and its attack on Iraq‟s nuclear reactor in 1981 as the

paradigm of legitimate preventive war.12 His argument seems to be that if the legitimacy of the

June 1967 attack is beyond dispute and the legitimacy of the 1981 attack has come to be seen as

beyond dispute, then the legitimacy of a preventive war against Iran should also be beyond

dispute.



Before analyzing this argument it is instructive to look at the current legal consensus on

preemptive and preventive war. Dershowitz asserts that an “accepted jurisprudence” doesn‟t

exist.13 In fact, however, there is an enduring consensus, which recent events haven‟t shaken. In

2004 a high-level U.N. panel commissioned by the Secretary-General published its report on

combating challenges to global security in the 21st century. The report reaffirmed the

conventional understanding of Article 51 of the U.N. Charter, which prohibits the unilateral use

of force by a State except to ward off an “armed attack” or if a “threatened attack is imminent, no

other means would deflect it and the action is proportionate” (emphasis in original), the latter

to do so here, except to note that political elites in the West were far from united in their assessment of the
evil Hitler represented, many of them believing that he was a blessing in disguise, and that had they been of
one mind collective undertakings short of preventive war could perhaps have contained him. Dershowitz
himself quotes Churchill that “the rise of Nazi military power could have been prevented, perhaps without
the use of force.” The problem, then, wasn‟t Allied legal aversion to preventive war but lack of Allied
political consensus on whether the Nazi regime warranted it. Analogously, while the Security Council has
the legal power to use force in case of perceived threats to peace, the problem is reaching consensus on the
existence of such threats.
12
   Along the way Dershowitz also justifies Israel‟s other wars as strictly defensive: the 1948 war was
“largely reactive” (pp. 78, 103); the 1956 invasion of Sinai was “largely preventive” (pp. 79, 102); the 1973
war was “entirely reactive” (p. 104; cf. pp. 83-89); the 1982 invasion of Lebanon was “purely preventive”
(p. 104; cf. p. 102). Beyond the vulgar apologetics, he seems unaware that on his criteria Arab states had in
each war a stronger case for launching the first strike against Israel: for Zionist plans before the 1948 Arab
attack to expand beyond the U.N. Partition Resolution borders, see Shlomo Ben-Ami, Scars of War,
Wounds of Peace (Oxford: 2006), p. 34; for Israeli plans already in the early 1950s to attack Egypt, see
Finkelstein, Beyond Chutzpah, p. 267; for Israeli plans already in 1966 to attack Syria, see Ben-Ami, Scars
of War, p. 100; for Israel‟s opposition to a negotiated settlement with Egypt in 1971 leading to the 1973
attack, see Norman G. Finkelstein, Image and Reality of the Israel-Palestine Conflict, second edition (New
York: 2003), chap. 6; for Israeli plans already in 1981 to invade Lebanon, see Finkelstein, Beyond
Chutzpah, p. 295; for Israeli plans a year before the latest Lebanon offensive to attack Hezbollah, see
Matthew Kalman, “Israel Set War Plan More Than a Year Ago,” in San Francisco Chronicle (21 July
2006).
13
   Dershowitz, Preemption, p. 60.
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commonly denoted preemptive use of force.14 The report went on to prohibit the unilateral use of

force by a State to ward off an inchoate armed attack, or what‟s commonly denoted preventive

use of force, reaffirming that the Security Council is the sole legitimate forum for sanctioning the

use of force in such a circumstance. “For those impatient with such a response,” it explained,

     the answer must be that, in a world full of perceived potential threats, the risk to the global order and
     the norm of non-intervention on which it continues to be based is simply too great for the legality of
     unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing
     one to so act is to allow all.15




Although Dershowitz puts forth Israel‟s attack on Egypt in June 1967 as the paradigm of

preemptive use of force, both as a matter of fact and theory this claim is patently untenable. The

scholarly consensus is that an Egyptian armed attack was not imminent while it is far from certain

that diplomatic options had been exhausted when Israel struck.16 Dershowitz himself

acknowledges that “it is not absolutely certain” that Egypt would have attacked, and that “Nasser

may not have intended to attack.”17 He finesses this with the assertion that Israeli leaders

“reasonably believed” that an Egyptian attack was “imminent and potentially catastrophic.”18

Yet, apart from some transparently self-serving public statements there isn‟t a scratch of evidence

to sustain this claim either. Again, Dershowitz himself cites (in an endnote) the acknowledgment

of former Prime Minister Begin, who was a member of the National Unity government in June

1967, that Israel “had a choice. The Egyptian Army concentrations in the Sinai do not prove that

14
   Report of the Secretary-General‟s High-level Panel on Threats, Challenges and Change, A More Secure
World: Our shared responsibility (New York: 2004), para. 188. Dershowitz falsely implies that the
sanctioning of preemptive force is a new development (Preemption, p. 19). His disingenuous intent is to
suggest that if the rules on preemptive force have been modified in light of new, unprecedented threats to
global security, why shouldn‟t those on preventive force be modified as well? Similarly Dershowitz
exhorts that “no law or rule of morality will ever succeed in prohibiting all preemptive military actions.
Nor should it” (Preemption, p. 89). In fact, this is a red herring because international law has never barred
such action, as he well knows (ibid., pp. 200-1, 203). He pretends this is a controversial principle in order
to assimilate it to the truly controversial one of preventive war, conjoining them as allegedly disputed
principles that are manifestly just.
15
   Report of the Secretary-General‟s High-level Panel, para. 191.
16
   Finkelstein, Image and Reality, chap. 5 and Appendix.
17
   Dershowitz, Preemption, pp. 82, 83; cf. p. 88. Elsewhere he seems to allege contrariwise that an
Egyptian attack was imminent (ibid., pp. 200, 204).
18
   Ibid., pp. 83, 203.
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Nasser was really about to attack us. We must be honest with ourselves. We decided to attack

him.”19 Even if for argument‟s sake it were true that Israeli leaders honestly erred, how can

resort to preemptive force on the mistaken belief that an attack was imminent constitute the

paradigm of legitimate use of preemption – or, to use Dershowitz‟s coinage, how can a “false

positive” be the paradigmatic case? Rather the contrary, if June 1967 were the paradigm of

preemption, it would undercut the legitimacy of any such resort to force. Dershowitz seems not

to be aware that he has made a case not for but against preemptive war.



Dershowitz next nominates Israel‟s attack on the Iraqi nuclear reactor as “paradigmatic” of

legitimate use of preventive force.20 He mounts his case from multiple angles, sometimes

implicitly, sometimes explicitly, but always falsely. In the first instance, Dershowitz puts

preemptive war at one pole of a continuum and preventive war at the opposite pole.21 Although

asserting that “the distinction between preventive and preemptive military action is important,”

and that there are “real differences between these concepts,”22 he more often than not uses the

terms interchangeably. For instance, he goes back and forth depicting the 1981 Israeli attack on

Iraq‟s nuclear reactor and the 2003 U.S. attack on Iraq both as preemptive and preventive uses of

force.23 By collapsing the distinction between them, whereby not even a flea‟s hop separates the

two poles on his continuum, Dershowitz in effect legitimizes preventive war as preemptive war

by another name. In like manner he redefines preemption so as to include preventive use of

force: “preemption is widely, if not universally, regarded as a proper option for a nation

19
   Ibid., pp. 302-3n25. Dershowitz also cites Michael Walzer‟s argument that Israel couldn‟t afford the
costs of a protracted full-scale mobilization of its civilian army (ibid., p. 305n53). Yet, according to
American estimates, as of 26 May “Israel could maintain the present level of mobilization for two months
without causing serious trouble,” while the U.S. had committed itself to footing the bill for Israel‟s
mobilization. See U.S. Department of State, Foreign Relations of the United States, 1964-1966, vol. XIX,
Arab-Israeli Crisis and War, 1967 (Washington, D.C.: 2004), doc. 72, and Finkelstein, Image and Reality,
p. 136.
20
   Dershowitz, Preemption, p. 94; cf. p. 220.
21
   Ibid., pp. 60-1.
22
   Ibid., pp. 104, 156; cf. p. 59.
23
   Ibid. For 1981, see pp. 94, 98, 99, 167, 179, 180, 240; for 2003, see pp. 153-73 passim, 196. For this
conflation in the case of a possible attack on Iran, see pp. 180, 183, 187, 188.
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operating under the rule of law, at least in some circumstances – for example, when a threat is

catastrophic and relatively certain, though nonimminent.”24 If this is preemption, one wonders

what prevention would be.



In addition, although acknowledging that the U.N. panel explicitly ruled out preventive use of

force, Dershowitz nonetheless maintains that it has come to be seen as legitimate. To

demonstrate this he alleges that Israel‟s attack on Iraq‟s nuclear reactor has become recognized as

“the proper and proportional example of anticipatory self-defense in the nuclear age” and “the

paradigm for proportional, reasonable, and lawful preventive action” in the “emerging

jurisprudence of preventive military actions,” notwithstanding the “lack of imminence and

certainty” of the Iraqi threat to Israel.25 He bases this resounding conclusion on a recent article in

Foreign Affairs which “would certainly seem to have justified Israel‟s bombing of the Osirak

reactor.”26 Plainly the import of the U.N. panel‟s findings pales by comparison.



Finally, invoking a philosopher‟s wisdom that “no one law governs all things,”27 Dershowitz

maintains that although preventive war might be illegitimate for all other States it remains a

legitimate option for Israel. This is because the U.N., which is the court of last appeal for

inchoate armed threats, is biased against it. Accordingly, unlike all other States, Israel cannot be

held accountable to international law or, put otherwise, international law might apply to everyone

else but it doesn‟t apply to Israel: “it cannot expect the United Nations to protect it from enemy

attack, and…with regard to international law and international organizations, it lives in a state of
24
   Ibid., p. 223; cf. p. 239 where he defines nonimminent attacks as “preemptive military actions.”
25
   Dershowitz, Preemption, pp. 94-5, 220.
26
   Ibid., p. 220. Taking a different tack he also maintains (ibid., pp. 96-9, 207, 325n26) that Israel‟s 1981
strike was actually a preemptive response to an imminent threat: that is, had it deferred attacking until the
Iraqi reactor went active, Israel couldn‟t have struck because the radioactive fallout would have killed too
many civilians – a contingency, according to him, that the U.N. panel ignored. Yet, as he well knows, the
panel issued its strictures barring preventive war after vetting the possibility that a deferred attack might
result in “radioactive fallout from a reactor destruction.” See Report of the Secretary-General‟s High-level
Panel, para. 189; also cited in Dershowitz, Preemption, p. 206.
27
   Ibid., p. 208.
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nature.”28 To demonstrate the U.N.‟s inveterate hostility to Israel, Dershowitz specifically cites

“Russia‟s and China‟s veto power” in the Security Council, which has allegedly blocked action

supportive of it.29 Yet, not once in the past 20 years has Russia or China used the veto for a

Security Council resolution bearing on Israel. On the other hand, the U.S. has exercised its veto

power 23 times in just the past two decades (1986-2006) in support of Israel.30 Moreover, due to

the U.S. veto Israel has been shielded from any U.N. sanctions, although the Security Council has

imposed them on 15 member States since 1990, often for violations of international law identical

to those committed by Israel.31 Not for the first time Dershowitz has turned reality on its head.



On a related note Dershowitz correctly observes that Israel “was not condemned by the Security

Council” in June 1967,32 although its resort to force violated the U.N. Charter, an armed Egyptian

attack having been neither actual nor imminent. The Security Council and General Assembly

were both divided on how to adjudicate responsibility for the war. This would seem to suggest

that far from being an inherently hostile forum, the U.N. has in fact granted Israel special

dispensations. More generally, as former Israeli Foreign Minister Shlomo Ben-Ami observes, it

was Israel‟s policy of creeping annexation that shifted world opinion against it:

     Neither in 1948 nor in 1967 was Israel subjected to irresistible international pressure to relinquish
     her territorial gains because her victory was perceived as the result of a legitimate war of self-
     defense. But the international acquiescence created by Israel‟s victory in 1967 was to be extremely
     short-lived…. When the war of salvation and survival turned into a war of conquest and settlement,

28
   Ibid., p. 77 (internal quotation marks omitted); cf. pp. 180, 208, 211-12, 238, 327n17. Occasionally
Dershowitz maintains that the U.S. also has the right, alone or in concert with Israel, to use preventive force
unilaterally, although offering no explanation why it can‟t consult the U.N. first (ibid., pp. 179, 181, 187).
29
   Ibid., pp. 210-11, 328n37.
30
   www.globalpolicy.org/security/membship/veto/vetosubj.htm. This figure doesn‟t include many more
resolutions critical of Israel that never reached a Security Council vote due to U.S. opposition. In this
regard it also merits noting Dershowitz‟s dismissal of the Security Council on the ground that members
don‟t vote on “any principle other than that of self-serving advantage and realpolitik bias” (Preemption, pp.
211-12, emphasis in original). To judge by frequency of use of the veto, and although Dershowitz passes
over this in silence, the U.S. is by a wide margin least in sync with the collective will of the international
community: of the 81 Security Council vetoes during the past 30 years (1976-2006), the U.S. was
responsible for 69 of them (19 in concert with the United Kingdom and/or France).
31
   David Cortright and George A. Lopez, The Sanctions Decade: Assessing U.N. strategies in the 1990s
(Boulder, CO: 2000); Marc Weller and Barbara Metzger, Double Standards (Negotiations Affairs
Department, Palestine Liberation Organization: 24 September 2002).
32
   Dershowitz, Preemption, p. 202.
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     the international community recoiled and Israel went on the defensive. She has remained there ever
     since.33




Insofar as the professed goal of Dershowitz‟s book is not descriptive but normative – i.e., to

devise ideal laws and institutional arrangements for combating terrorism – it is curious that he

doesn‟t propose reconfiguring the Security Council to mitigate its alleged bias. In this regard

another of his claims merits attention: “The UN report fails to address the situation confronting a

democracy with a just claim that is unable to secure protection from the Security Council and that

reasonably concludes that failing to act unilaterally will pose existential dangers to its citizens.”34

Yet, the High-level panel report explicitly addresses this concern and devotes one of its four parts

specifically to proposals for reforming the Security Council as well as other U.N. institutions,

noting preliminarily that:

     One of the reasons why States may want to bypass the Security Council is a lack of confidence in
     the quality and objectivity of its decision-making….But the solution is not to reduce the Council to
     impotence and irrelevance: it is to work from within to reform it…not to find alternatives to the
     Security Council as a source of authority but to make the Council work better than it has. 35

The reason Dershowitz prefers to shunt aside the Security Council rather than reform it is not

hard to find: it is difficult to conceive any configuration of the Security Council that would

sanction Israel‟s periodic depredations of neighboring Arab countries. Finally, Dershowitz

justifies ignoring the Security Council‟s strictures on the use of preventive force because its

“anachronistic, mid-twentieth century view of international law” doesn‟t take into account the

threat posed by “nuclear annihilation.”36 It seems he forgot about the Cold War.



Apart from the alleged biases of the U.N., Dershowitz defends Israel‟s unilateral right to prevent

its neighbors from acquiring nuclear weapons apparently on the ground that conventional nuclear


33
   Ben-Ami, Scars of War, pp. 314-15.
34
   Dershowitz, Preemption, pp. 211-12.
35
   Report of the Secretary-General‟s High-level Panel, paras. 197-8. The recommendations comprise Part
IV of the report.
36
   Dershowitz, Preemption, p. 239.
                                                                                                      10


deterrence strategy is anchored in the mutually implied threat of inflicting massive civilian

casualties. However Israel‟s neighbors know, according to him, that it would never

indiscriminately target civilian population centers.37 Lest there be any doubt on this score he

quotes former Prime Minister Begin, “That is our morality.”38 As Lebanese civilians witnessed

for themselves in 1982, and have witnessed again in 2006 from the “most moral army in the

world” (Prime Minister Olmert).



The indefeasible right of Israel to wage war as it pleases would seem to grant it very broad

license: if there‟s just “five percent likelihood” that Israel might face a compelling threat in “ten

years,” according to Dershowitz, it has the right to attack now, and apparently regardless of

whether this potential threat emanates from a currently friendly state.39 This would seem to mean

that no place in the world is safe from an Israeli attack at any moment. In Dershowitz‟s mind,

this is the essence of a realistic and moral jurisprudence on war.



                                                 ***



Since the outbreak of hostilities between Israel and Lebanon in July 2006, Dershowitz has used

the war on terrorism to target yet another branch of international law, the protection of civilians

during armed conflict. Before analyzing his allegations, it is necessary to look first at the factual

picture.




37
   Ibid., pp. 77, 319n1.
38
   Ibid., p. 96; cf. p. 323n1.
39
   Ibid., pp. 95-6, 186-7; cf. pp. 225-6.
                                                                                                       11


In early August Human Rights Watch (HRW) released a comprehensive report devoted mainly to

Israel‟s violations of the laws of war during the first two weeks of the conflict.40 Its main

findings were these: over 500 Lebanese had been killed, overwhelmingly civilians, and up to

5,000 homes damaged or destroyed; “in dozens of attacks, Israeli forces struck an area with no

apparent military target”; Israel attacked “both individual vehicles and entire convoys of civilians

who heeded the Israeli warnings to abandon their villages” as well as “humanitarian convoys and

ambulances” that were “clearly marked,” while none “of the attacks on vehicles…resulted in

Hezbollah casualties or the destruction of weapons”; “in some cases…Israeli forces deliberately

targeted civilians”; “no cases [were found] in which Hezbollah deliberately used civilians as

shields to protect them from retaliatory IDF attack”; “on some limited occasions, Hezbollah

fighters have attempted to store weapons near civilian homes and have fired rockets from areas

where civilians live.” The “pattern of attacks during the Israeli offensive,” HRW concluded,

“indicate[s] the commission of war crimes.”



Contrariwise, Dershowitz has repeatedly alleged in numerous op-ed pieces41 that Israel typically

takes “extraordinary steps to minimize civilian casualties,” while Hezbollah‟s typical tactics were

to “live among civilians, hide their missiles in the homes of civilians, fire them at civilian targets

from densely populated areas, and then use civilians as human shields against counterattacks.”

He adduces no evidence to substantiate these claims, all of which are flatly contradicted by

HRW‟s findings.42 In addition, Dershowitz juxtaposes the “indisputable reality” that “Israel uses


40
   Human Rights Watch, Fatal Strikes: Israel’s indiscriminate attacks against civilians in Lebanon (August
2006).
41
   See his “Arithmetic of Pain,” in Wall Street Journal (19 July 2006), “Arbour Must Go,” in National Post
(21 July 2006), “‟Civilian Casualty‟? It Depends,” in Los Angeles Times (22 July 2006), “Blame the
Terrorists, not Israel,” in Boston Globe (24 July 2006), “How the UN Legitimizes Terrorists,” in Chicago
Tribune (25 July 2006), “Hizbullah‟s Real Goal is Racist,” in Christian Science Monitor (27 July 2006),
“Hezbollah‟s Human Shields,” in National Post (1 August 2006), “Lebanon is Not a Victim,” in The
Huffington Post (7 August 2006) (www.huffingtonpost.com/alan-dershowitz/lebanon-is-not-a-
victim_b_26715.html).
42
   The specific context of the quoted statement regarding Hezbollah‟s tactics was the 30 July Israeli
massacre at Qana. Yet, no evidence has been found that Hezbollah fighters or rocket launchers were in the
                                                                                                          12


pinpoint intelligence and smart bombs in an effort…to target the terrorists” against Hezbollah

which “targets Israeli population centers with anti-personnel bombs that spray thousands of

pellets of shrapnel in an effort to maximize casualties.” Yet, HRW has documented Israel‟s use

in populated areas of artillery-fired cluster munitions with a “wide dispersal pattern” that “makes

it very difficult to avoid civilian casualties” and a “high failure rate” such that they “injure and

kill civilians even after the attack is over.”43 Finally, Dershowitz deplores not only the actions of

Hezbollah but also of “the U.N. peacekeepers on the Lebanese border [who] have turned out to be

collaborators with Hezbollah.” Shouldn‟t he get some credit for a job well done after Israel killed

four of these “collaborators” in a deliberate attack on a U.N. compound?



The “new kind of warfare” in the “age of terrorism,” according to Dershowitz, underscores the

“absurdity and counterproductive nature of current international law.” He claims, for example,

that this body of law “fails” to address contingencies such as the firing of missiles “from civilian

population centers.” International law “must be changed,” he intones, and “it must become a war

crime to fire rockets from civilian population centers and then hide among civilians,” while those

using human shields should incur full and exclusive responsibility for “foreseeable” deaths in the

event of an attack. Yet, such a scenario is hardly new and the law has hardly been silent on it: use

of civilians as a shield from attack is a war crime, but it is also a war crime to disregard totally the

presence of civilians even if they are being used as a shield.44 Dershowitz further declares that “it

should, of course, already be a war crime for terrorists to target civilians from anywhere.” It of

course already is a war crime. He alleges, however, that “you wouldn‟t know it by listening to

statements from some U.N. leaders and „human rights‟ groups.” Isn‟t his real beef, however, that

vicinity of the village when the building was repeatedly bombed. In addition to Fatal Strikes, see HRW
press releases, “Qana Death Toll at 28” (2 August 2006) and “IDF Fails to Explain Qana bombing” (3
August 2006).
43
   In addition to Fatal Strikes, see HRW, “Israeli Cluster Munitions Hit Civilians in Lebanon” (24 July
2006).
44
   HRW, Questions and Answers on Hostilities Between Israel and Hezbollah (2 August 2006). See also
Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (Cambridge:
2005), pp. 129-31.
                                                                                                                 13


they don‟t only denounce the targeting of civilians by “terrorists” but the targeting of civilians by

states as well?



International law, Dershowitz alleges, is based on “old rules – written when uniformed armies

fought other uniformed armies on a battlefield far away from cities” – whereas nowadays “well-

armed terrorist armies” like Hezbollah “don‟t belong to regular armies and easily blend into

civilian populations” that “recruit, finance, harbor and facilitate their terrorism.” But these

conditions are scarcely novel. In his writings Dershowitz often cites Michael Walzer‟s 1977

study Just and Unjust Wars. He surely knows, then, that Walzer devotes the chapter on guerrilla

war45 to these issues. Consider this passage:

     If you want to fight against us, the guerrillas say, you are going to have to fight civilians for you are
     not at war with an army, but with a nation….In fact, the guerrillas mobilize only a small part of the
     nation….They depend upon the counter-attacks of their enemies to mobilize the rest. Their strategy
     is framed in terms of the war convention: they seek to place the onus of indiscriminate warfare on
     the opposing army….Now, every army depends upon the civilian population of its home country for
     supplies, recruits, and political support. But this dependence is usually indirect, mediated by the
     bureaucratic apparatus of the state or the exchange system of the economy....But in guerrilla war, the
     dependence is immediate: the farmer hands the food to the guerrilla….Similarly, an ordinary citizen
     may vote for a political party that in turn supports the war effort and whose leaders are called in for
     military briefings. But in guerrilla war, the support a civilian provides is far more direct. He
     doesn‟t need to be briefed; he already knows the most important secret: he knows who the guerrillas
     are….The people, or some of them, are complicitous in guerrilla war, and the war would be
     impossible without their complicity….[G]uerrilla war makes for enforced intimacies, and the people
     are drawn into it in a new way even though the services they provide are nothing more than
     functional equivalents of the services civilians have always provided for soldiers.

If the questions Dershowitz poses are not original, it must be said that his answers are, at any rate

coming from someone who claims to be a liberal. He writes, for instance, that “the Israeli army

has given well-publicized notice to civilians to leave those areas of southern Lebanon that have

been turned into war zones. Those who voluntarily remain behind have become complicit.” In

fact, Walzer ponders precisely this scenario in the context of the Vietnam war where, according

to the rules of engagement, “civilians were to be given warning in advance of the destruction of

their villages, so that they could break with the guerrillas, expel them, or leave themselves….Any

45
  Michael Walzer, Just and Unjust Wars: A moral argument with historical illustrations (New York:
1977), pp. 176-96.
                                                                                                             14


village known to be hostile could be bombed or shelled if its inhabitants were warned in advance,

either by the dropping of leaflets or by helicopter loudspeaker.” In Walzer‟s judgment such rules

“could hardly be defended” in view of the massive devastation wrought. In the event that

“civilians, duly warned, not only refuse to expel the guerrillas but also refuse to leave

themselves,” Walzer goes on to stress,

     so long as they give only political support, they are not legitimate targets, either as a group or as
     distinguishable individuals….So far as combat goes, these people cannot be shot on sight, when no
     firefight is in progress; nor can their villages be attacked merely because they might be used as
     firebases or because it is expected that they will be used; nor can they be randomly bombed and
     shelled, even after warning has been given.

To be sure, Walzer wrote this in the context of Vietnam. Like Dershowitz, he became a born-

again Zionist after the June 1967 war and accordingly has applied an altogether different standard

to Israel. Whereas Dershowitz plays the tough Jew, Walzer‟s assigned role has been to stamp as

kosher every war Israel wages, but only after anxious sighs. Thus, while HRW was deploring

Israel‟s war crimes, Walzer opined on cue that "from a moral perspective, Israel has mostly been

fighting legitimately,” and that if Israeli commanders ever faced an international tribunal, "the

defense lawyers will have a good case," mainly because Hezbollah has used civilians as human

shields – even if in the real world they haven‟t.46



Dershowitz purports to make the case that the laws of war need to be revised in the “new” age of

terrorism. In fact, his real concern is an old one. A standard tactic of Israel in its armed

hostilities with Arab neighbors has been to inflict massive, indiscriminate civilian casualties, and

Dershowitz‟s standard defense has been to deny it.47 But the credibility of human rights

organizations that have documented these war crimes is rather higher than that of this notorious

serial prevaricator, which is why he so loathes them.48 Dershowitz now uses the war on terror as


46
   Ori Nir, “Israeli Military Policy Under Fire After Qana Attack,” in The Forward (4 August 2006). See
also Michael Walzer, “War Fair,” in The New Republic (31 July 2006). For Walzer‟s long record of
apologetics for Israel, see Finkelstein, Image and Reality, pp. 1-3, 140, and sources cited on p. 207n9.
47
   See Finkelstein, Beyond Chutzpah, pp. 272-6.
48
   See ibid., pp. 91-4.
                                                                                                          15


a pretext to strip civilians of any protections in time of war, dragging the law down to put it on

level with Israel‟s criminal practices.



The main target of his “reassessment of the laws of war” has been the fundamental distinction

between civilians and combatants. Ridiculing what he deems the “increasingly meaningless word

„civilian‟” and asserting that, in the case of terrorist organizations like Hezbollah, “„civilianality‟

is often a matter of degree, rather than a bright line,” Dershowitz proposes to replace the civilian-

combatant dichotomy with a “continuum of civilianality”:

     Near the most civilian end of this continuum are the pure innocents – babies, hostages and others
     completely uninvolved; at the more combatant end are civilians who willingly harbor terrorists,
     provide material resources and serve as human shields; in the middle are those who support the
     terrorists politically, or spiritually. 49


He imagines that this revision wouldn‟t apply to Israel because “the line between Israeli soldiers

and civilians is relatively clear.” But is this true? Israel has a civilian army, which means a mere

call-up slip or phone call separates each adult Israeli male from a combatant. Israeli civilians

willingly provide material resources to the army. To judge by its targeting of Lebanese power

grids, factories, roads, bridges, trucks, vans, ambulances, airports, and seaports, Israel must

reckon all civilian infrastructure legitimate military targets, in which case all Israelis residing in

the vicinity of such Israeli infrastructure constitute human shields. Israel‟s recent brutal assault

on Lebanon, like its past wars during which massive war crimes were committed, has enjoyed

overwhelming political and spiritual support from the population.50 “If the media were to adopt

the „continuum‟‟‟ he has proposed, Dershowitz reflects, “it would be informative to learn how

many of the „civilian casualties‟ fall closer to the line of complicity and how many fall closer to

the line of innocence.” It would seem, however, that on his spectrum nearly every Israeli would

be complicitous.

49
   He goes so far as to suggest that combatants might deserve more solicitude than civilians in time of war,
depending on “the precise nature of the civilian‟s „civilianality‟” (Preemption, p. 247).
50
   For past wars, see Finkelstein, Beyond Chutzpah, pp. 176-7.
                                                                                                     16




In light of the revisions Dershowitz enters in international law, his reasoning begins to verge on

the bizarre. He asserts that inasmuch as the Lebanese population overwhelmingly “supports

Hezbollah,” there are no real civilians or civilian casualties in Lebanon: “It is virtually impossible

to distinguish the Hezbollah dead from the truly civilian dead, just as it is virtually impossible to

distinguish the Hezbollah living from the civilian living.” If this be the case, however, it is hard

to make out the meaning of Dershowitz‟s praise of Israel for only targeting Hezbollah terrorists in

Lebanon. Didn‟t he just say that all of the Lebanese are Hezbollah? Similarly he condemns

Hezbollah for targeting Israeli civilians. But Israelis are no less supportive of the IDF than

Lebanese are of Hezbollah. Doesn‟t this mean that Hezbollah can‟t be targeting civilians in Israel

because there aren‟t any? These are of course quibbles next to the fact that Dershowitz has now

sanctioned mass murder of the Lebanese people.



It remains to consider Dershowitz‟s own location on the continuum of civilianality. Israel could

not have waged any of its wars of aggression or committed any of its war crimes without the

blanket political and military support of the United States. Using his academic pedigree

Dershowitz has played a conspicuous, crucial and entirely voluntary public role in rallying such

support. He has for decades grossly falsified Israel‟s human rights record. He has urged the use

of collective punishment such as the “automatic destruction” of a Palestinian village after each

Palestinian attack. He has covered up Israel‟s use of torture on Palestinian detainees, and himself

advocated the application of “excruciating” torture on suspected terrorists such as a “needle being

shoved under the fingernails.” He has aligned himself with the Israeli government against

courageous Israeli pilots refusing the immorality of targeted assassinations. He has denounced

nonviolent resisters to the Israeli occupation as “supporters of Palestinian terrorism.” He has

dismissed ethnic cleansing as a “fifth-rate issue” akin to “massive urban renewal.” He has
                                                                                                            17


advised Israel‟s senior government officials that Israel is not bound by international law.51 He

has now sanctioned the extermination of the Lebanese people.



Finally, in Preemption he boasts of having vicariously participated in a targeted assassination

while visiting Israel:

     I watched as a high-intensity television camera, mounted on a drone, zeroed in on the apartment of a
     terrorist…I watched as the camera focused on the house and the nearly empty streets.


It seems, however, that this moral pervert missed the climactic scene of his little peep show,

although it isn‟t reported whether he got his quarter back: “I was permitted to watch for only a

few minutes, and no action was taken while I was watching because the target remained in the

house.”52 One wonders whether Dershowitz carefully inserted these weasel words because, as he

well knows, targeted assassinations constitute war crimes, and he might otherwise be charged as

an accessory to one.



In Preemption Dershowitz observes that “there can be no question that some kinds of expression

contribute significantly to some kinds of evil.” In this context he recalls that the International

Criminal Tribunal for Rwanda handed down life sentences to Hutu radio broadcasters for inciting

listeners to “hatred and murders.”53 He also recalls the highly pertinent case of Nazi propagandist

Julius Streicher, who was described by writer Rebecca West as “a dirty old man of the sort that

gives trouble in parks,” and by Nuremberg prosecutor Telford Taylor as “neither attractive nor

bright.” Although Hitler had stripped this self-styled Zionist and expert on Jews of all his

political power by 1940, and his pornographic newspaper Der Stuermer had a circulation of only




51
   Ibid., pp. 221-4
52
   Dershowitz, Preemption, pp. 126-7.
53
   Ibid., pp. 146-7.
                                                                                                        18


some 15,000 during the war, the International Tribunal at Nuremberg nonetheless sentenced

Streicher to death for his murderous incitement.54



On his continuum of civilianality Dershowitz appears to fall in the proximity of the Hutu radio

broadcasters and Streicher – less direct in his appeal, more influential in his reach. It is highly

unlikely, however, that he will ever be brought before a tribunal for his criminal incitement. But

there is yet another possibility for achieving justice. Dershowitz is a strong advocate of targeted

assassinations when “reasonable alternatives” such as arrest and capture aren‟t available.55 The

conclusion seems clear – if, and only if – one uses his standard and his reasoning. Of course, the

preponderance of humanity, this writer included, does not think this way. After all the hard-won

gains of civilization, who would want to live in a world that once again legally sanctioned torture,

collective punishment, assassinations and mass murder? As Dershowitz descends into barbarism,

it remains a hopeful sign that few seem inclined to join him.




Norman G. Finkelstein

08 August 2006

New York City

www.NormanFinkelstein.com

NormanGF@hotmail.com




54
   Telford Taylor, The Anatomy of the Nuremberg Trials (New York: 1992), pp. 150 (Taylor description,
Zionist, Jewish expert), 228 (West), 264, 376-8, 481, 590.
55
   Dershowitz, Preemption, p. 229.

				
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